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Rinaldo v. RLR Investment, LLC

387 N.J. Super. 387, 904 A.2d 725 (App. Div. 2006)

WETLANDS PERMIT; NOTICES — An applicant for a wetlands permit who proposes to mitigate the adverse impact of wetlands of its own property development project must give notice to owners of properties within two hundred feet of the mitigation site.

A construction company applied for a wetlands permit to build an access road to a proposed trucking facility. Since the road would adversely impact wetlands, the construction company also had to submit a wetlands mitigation proposal. It received approvals for the project from the Department of Environmental Protection (DEP). A farmer owned a farm that abutted the property on which the construction company proposed to construct its mitigation project. The farmer filed a complaint against the construction company, the company involved in designing, planning and construction of the mitigation project, and the owner of the property. The farmer sought to enjoin the construction of the mitigation project and an injunction requiring the construction company to repair and restore the damage already done to his property. The complaint included a claim against the DEP that its approvals of the construction company’s wetlands permit and the mitigation project were invalid. The lower court rejected the farmer’s claim for injunctive relief because the farmer failed to show that damage to his property could not be satisfied with pecuniary damages. The lower court noted that since the mitigation project was completed at the time of trial the farmer’s application to enjoin the project had become moot.

The farmer appealed, arguing that the DEP’s approval for the mitigation project was invalid because the construction company failed to give him notice of the mitigation project. The Appellate Division agreed, finding that the farmer’s property was located within two hundred feet of the site where the construction company constructed the mitigation project. The Court found that the mitigation project constituted a “regulated activity” under the Freshwater Wetlands Protection Act (FWPA) since the project involved a “disturbance” of the existing wetlands. It noted that the lower court properly decided that the farmer’s claim against the DEP was within the exclusive jurisdiction of the Appellate Division. However, the Court also found that the lower court should not have transferred the farmer’s tort claims to the Appellate Division. The farmer’s tort claims against the private defendants required a record to be established and factfinding which the lower court should adjudicate. The Court affirmed the lower court’s decision in denying the farmer’s application for preliminary injunction.

Accordingly, the Court held that the DEP’s approval of the construction company’s mitigation project was invalid since the company failed to give notice of the application to the farmer as required by the FWPA. It also held that the farmer could pursue his claims for permanent injunctive relief on the basis that the lower court could award pecuniary damages or provide a remedy to mitigate the alleged adverse effect of the project on the farmer’s property.

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